Page 16 - Law of Peace, Volume ,

Pam 27-161-1

mented domestic legislation to this effect and that other crystallized in Article 6 of the Convention, nevertheless such a rule has
states had accepted this rule asbinding customary interna- come into being since the Convention, partly because of its om impact,
tional law. The court explained its decision as follows: partly on the basii of subsequent State practice.
.. . .Undoubtedly, no single nation can change the law of the sea.That 71. In so far as this contention is based on the view that Article 6 of
law is of universal obligation, and no statute of one or two nations can the Convention has had the influence, and has produced the effect, de-
create obligations for the world. Like all the laws of nations, it rests upon scribed, it clearly involves treating that Article asa norm-creating provi-
the common consent of civilized communities. It is of force, not sion which has constituted the foundation of, or has generated a rule
because it was prescribed by any superior power, but because it has been which, only conventional or contractual in its origin, has since passed
generally accepted as a rule of conduct. Whatever may have been its into the general corpus of international law, and is now accepted as such
origin, whether in the usages of navigation or in the ordinances of by the opinio juris, so as to have become biding even for countries
maritime states, or in both, it has become the law of the sea only by the which have never, and do not, become parties to the Convention. There
concurrent sanction of those nations who may be said to constitute the is no doubt that this process is a perfectly possible one and does from
commercial world. Many of the usages which prevail, and which have time to time occur: it constitutes indeed one of the recognized methods
the force of law, doubtless originated in the positive prescriptions of by which new rules of customary international law may be formed. At
some single state, which were at fmt of limited effect, but which when the same time this result is not likely to be regarded as having been at-
generally accepted became of universal obligation. The Rhodian law is tained.
supposed to have been the earliest system of maritime rules. It was a 72. It would in the fmt be necessary that the provision concerned
code for Rhodians only, but it soon became of general authority because should, at all events potentially, be of a fundamentally norm-creating
accepted and assented to as a wise and desirable system by other character such as could be regarded as forming the basis of a general rule
maritime nations .. . . And it is evident that unless general assent is of law. Considered in abstracto, the equidistance principle might be said
efficacious to give sanction to international law, there never can be that to fulfffl this requirement. Yet, in the particular fom in which it is em-
growth and development of maritime rules which the constant changes bodied in Article 6 of the Geneva Convention, and having regard to the
in the instruments and necessities of navigation require. Changes in relationship of that Article to other provisions of the Convention, this
nautical rules have taken place. How have they been accomplished, if must be open to some doubt. In the fmt place, Article 6 is so framed as
not by the concurrent assent, expressed or understood, of maritime na- to put second the obligation to make use of the equidistance method,
tions? When, therefore, we fmd such rules of navigation as are men- causing it to come after a primary obligation to effect delimitation by
tioned in the British orders in council of January 9,1863, and in our act agreement. Such a primary obligation constitutes an unusual preface to
of Congress of 1864, accepted as obligatory rules by more than thirty of what is claimed to be a potential general rule of law. . . .
the principal commercial states of the world, including about all which
have any shipping on the Atlantic Ocean, we are constrained to regard Secondly the part played by the notion of special circumstances relative
them as in part as least, and so far as relates to these vessels, the law of to the principle of equidistance as embodied in Article 6, and the very
the sea, and as having been the law at the time when the collision of considerable, still unresolved controversies as to the exact meaning and
which the libellants complain took place. scope of this notion, must raise further doubts as to the potentially
This isnot giving to the statutes of any nation extraterritorial effect. It norm-creating character of the rule. Finally, the faculty of making reser-
is not treating them as general maritime laws, but it isrecognition of the vations to Article 6, while it might not of itself prevent the equidistance
historical fact that by common consent of mankind, these rules have principlebeing eventually received asgeneral law, does add considerably
been acquiesced in as of general obligation. . . . to the difliculty of regarding this result ashaving been brought about (or
beiig potentially possible) on the basii of the Convention: for solong as
(c) NORTH SEA CONTINENTAL SHELF CASES this faculty continues to exist, .. . it is the Convention itself which
(Federal Republic of Germany v. Demark) would, for the reasons already indicated, seem to deny to the provisions
(Federal Republic of Germany v. Netherlands) of Article 6 the same norm-creating character as, for instance, Articles 1
International Court of Justice, 1969. and 2 possess.
119691 I.C.J. Rep. 3, 8 Int'l Leg.Mat'ls 340 (1969). 73. With respect to the other elements usually regarded as necessary
[Denmark and the Netherlands contended that the boundaries be- before a conventional rule can be considered to have become a general
tween their respective areas of the continental shelf in the North Sea, on rule of international law, it might be that, even without the passage of
the one hand, and the area claimed by the Federal Republic of Ger- any considerable period of time, a very widespread and representative
many, on the other, should be determined by the application of the participation in the convention might suffice of itself, provided it in-
principle of equidistance set forth in Article 6(1) of the Geneva Con- duded that of States whose in- were spedly afeded In the pres-
vention of 1958 on the Continental Shelf, 15 U.S.T. 471,499 U.N.T.S. ent case,however, the court notes that, even if allowance is made for
311, which by January 1, 1969, had been ratified or ded to by 39 the existence of a number of States to whom participation in the Geneva
states, but to which Germany was not a party. Article 6(1) of the Con- Convention is not open, or which, by reason for instance of being land-
vention reads as follows: locked States, would have no interest in becoming parties to it, the
Where the same continental shelf is adjacent to the territories of number of ratifications and accessions so far secured is, though respecta-
two or more States whose coasts are opposite each other, the bound- ble, hardly sufficient. That no~atifcation may sometimes be due to fac-
ary of the continental shelf appertaining to such States shall be deter- tors other than active disapproval of the convention concerned can
mined by agreement between them. In the absence of agreement, hardly constitute a basis on which positive acceptance of its principles
and unlessanother boundary line is justified by special circumstances, can be implied. The reasons are speculative, but the facts remain.
the boundary is the median line, every point of which is equidistant
from the nearest points of the baselinesfrom which the breadth of the 74. As regards the time element, the Court notes that it is over ten
temtorial sea of each State is measured. years since the Convention was signed, but that it is even now less than
five since it came into force in June 1964. .. .Although the pasage of
Holding, by a vote of 11 to 6, that Germany was not bound by the only a short period of time is not necessarily, or of itself, a bar to the for-
principle of equidistance, the Court said in part:]
**** mation of a new rule of customary international law on the basii of what
was originally a purely conventional rule, an indispensable requirement
70. ... [Denmark and the Netherlands argue] that even if there was would be that within the period in question, short though it might be,
at the date of the Geneva Convention no rule of customary interna- State practice, including that of States whose interests are specially
tional law in favour of the equidistance principle, and no such rule was affected, should have. been both extensive and virtually uniform in the